Florida Supreme Court hears appeal from ailing smokers

TALLAHASSEE - The state's highest court heard an appeal Wednesday on behalf of sick Florida smokers urging it to punish the tobacco industry for "fraud and deceit" by restoring a $145-billion class action award, the largest ever by an American jury.

The smokers' lawyers told the Florida Supreme Court it should reduce the amount of the award if justices think it is too large, but asked that they reverse an appellate court decision that overturned the Miami verdict and punitive judgment.

The appellate reversal "totally ignores a half-century of fraud and deceit by the tobacco industry, fraud and deceit which shocked the conscience of a seasoned trial judge who sat there for two years listening to 157 witnesses and examining thousands of documents," Stanley Rosenblatt told the high court.

Rosenblatt and his wife, Susan, shepherded the case, which accused the industry of misleading people about the dangers of smoking, through the two-year trial and a pair of appeals to the 3rd District Court of Appeal in Miami.

They won the first appeal, which certified the case as a class action on behalf of an estimated 300,000 to 700,000 ill Floridians.

After the trial, however, the appellate court ruled that certification was a mistake and tossed out the award.

"This case exemplifies the chaos that can result from improperly certified class actions," tobacco lawyer Elliott Scherker told the justices.

He argued the class certification was improper because every smoker is affected differently and should have to file a separate lawsuit.

The Rosenblatts said those differences could be resolved without disturbing the class action verdict by holding short proceedings to determine medical costs and other compensatory damages. Justice R. Fred Lewis cited decisions by other courts that agree with Scherker's position, but Stanley Rosenblatt said they were not "remotely similar to this case."

He compared it, instead, to Brown vs. Board of Education, the racial discrimination case that resulted in the U.S. Supreme Court's landmark decision that separate public schools for blacks and whites are inherently unequal.

"In the court of American law there is such an outrageous injustice that steps have to be taken," he said.

Six of the seven justices heard the case; Justice Raoul Cantero did not participate. The high court typically takes several months to rule on a case.